CASES FROM NORTH CAROLINA REPORTSCases Argued before the North Carolina Supreme Court

State and Hettie King v.
Stephen Hedgepeth

(Decided May 3, 1898)

Bastardy Proceeding-Criminal Action-Statute of Limitations

Bastardy proceedings are not subject to the
limitations prescribed in Section 1177 of The Code (two years) but are controlled by Section 36 of The Code which
provides that they shall be commenced within three years from the birth of the child.

Proceeding in
bastardy tried before BRYAN, J., and a jury at January Term, 1898, Franklin Superior Court, on appeal by the defendant from the
judgment of a Justice of the Peace. The defendant pleaded not guilty and contended that the prosecution was barred by lapse
of time, the Superior Court having held that a proceeding in bastardy is a criminal action. It appeared from the evidence that
more than two years, but not three years, had elapsed since the birth of the child. The defendant asked the Court to charge
that the proceeding was barred which request was refused and defendant excepted and upon conviction appealed.

DOUGLAS, J.: This is an appeal in bastardy proceedings, wherein the defendant was convicted. The only question brought
before us is the Statute of Limitations, the defendant contending that, as more than two years had elapsed since the birth of the
child before the bringing of this action, its prosecution was barred under Section 1177 of The Code. We do not think
so. Whatever may be the nature of the proceedings, Section thirty six of The Code specifically provides that: "All
examinations upon oath to charge any many with being the father of a bastard child, shall be taken within three years next after
the birth of the child."

We think that this Section controls the period of limitation for reasons more fully set forth in State v. Perry, decided
at this term. This being the only exception, an no error appearing upon the face of the record, the judgment is affirmed.

Affirmed.

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Commissioners of Louisburg v. EDWIN HARRIS

An act of Assembly, allowing a magistrate of police of an incorporated town to fine offenders, for disorderly conduct not
cognizable by the general law is not unconstitutional.

Where a town ordinance provided, that for certain disorderly conduct, the offender should pay a penalty of not less than one,
nor more than twenty dollars, it was Held that such ordinance was void for vagueness and uncertainty.

This was an action for a violation of a town ordinance, brought by appeal to the Superior Court for Franklin county, and tried
before Shepherd, J., at Fall Term, 1859.
The plaintiffs gave in evidence an act of Assembly, passed in 1855, entitled "an act to provide for the better government of the
town of Louisburg, in Franklin county." This act gives the commissioners full power to pass all needful rules, regulations and
by-laws, for the government of the town, not inconsistent with the constitution of the United States or of the State of North
Carolina.
The plaintiffs then gave in evidence an ordinance passed by the commissioners of said town, on the 12th of February, 1858, which
provides that "all disorderly conduct, whether committed by white men, boys, free negroes, or slaves, shall be prohibited under a
penalty of not less than one nor more than twenty dollars; all persons guilty of violating the peace, quiet or good order of the
town of Louisburg, shall be arrested by the town constable and carried before the magistrate of police and fined as above
provided, not less than one nor more than twenty dollars."
The act of Assembly incorporating the town of Louisburg, gives the right of appeal to the Superior Court, to persons convicted
under town ordinances, passed in pursuance of said act.

It was admitted, that after the passing of this ordinance, the defendant, Harris, came into the town, became intoxicated, and
was disorderly, disturbing persons by loud shouting in the streets. lie was brought before the magistrate of police, and fined
three dollars, and from this judgment he took an appeal to the Superior Court. The wan-ant, under which he was arrested, after
reciting the act of Assembly, and the town ordinance, and after declaring that EdwinHarris had violated the same, proceeds, "
whereby, and by force of said statute, the said E. Harris has forfeited, for the said offense, according to the penalty of said
ordinance, the sum of not less than one, nor more than twenty dollars, and thereby, and by virtue and force of said act of
Assembly or statute, and of said ordinance, an action has accrued to the commissioners for the town of Louisburg; these therefore,
are to command you to take the body of the said Edwin
Harris, and him have before me, "William H.
Pleasants, magistrate of police
for the town of Louisburg, to answer the said complaint of the commissioners of said town, for a violation of said ordinance, &c.,
and to render to said commissioners the penalty for such violation. Herein, etc."
The defendant's counsel asked his Honor to instruct the jury that according to law, the defendant was not guilty. This was refused
by the Court, who charged the jury, that if the testimony was believed, they should find the defendant guilty. Defendant excepted.
Verdict for the State.

The defendant moved, in arrest of judgment, for the reason that the act allowing the magistrate of police to fine, was
unconstitutional, but the motion was refused. Judgment for plaintiff for $3.00 and costs. Defendant appealed.

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HENRY W. PERRY, trustee, and others, against JAMES S. YARBROUGH

December Term 1856

Where a principal debtor, with money in his pocket, suffers the property of his surety to be sold, and himself becomes the
purchaser, it is doubtful whether, even at law, the sale as against the surety, is not a mere nullity; but, certainly, in a Court
of Equity, such a purchaser will not be allowed to set up a title thus acquired against his surety.
Cause removed from the Court of Equity of Franklin County.

The facts of this case are so fully set forth in the opinion of the Court, that it becomes unnecessary to state them here.Winston, Sen'r., and Gilliam, for
plaintiffs. Moore and G. W. Haywood, for
defendant

Pearson, J. On the 14th of August, 1846,
Samuel Perry executed a deed,
whereby, in consideration of natural love, he conveyed to his daughter, Mary
B. Perry, wife of Gustin Perry,
a negro slave, Isaac, for the separate use and maintenance of the said
Mary, during her life, and after her death, to the heirs of her body. At Spring
Term, 1847, of the Court of Equity of Franklin County, a bill was filed by the said Mary
B., and GustinPerry, Jun'r.,
Joseph Perry, and
Eliza Perry, infant children of the
said Mary B., by their next friend HenryW. Perry, (the plaintiff in this suit,) against
Gustin Perry, setting out the deed
executed by Samuel Perry, and
praying that a trustee might be appointed, to whom the said Gustin, who had
jure mariti acquired the legal title to the slave Isaac, might be decreed to
convey upon the trusts declared in the said deed. Gustin
Perry answered at the same term, and such proceedings were had that a decree was then made, that the said
Gustin should convey, by a proper deed, the said slave to
Henry W. Perry, in trust, for the
separate use and maintenance of the said Mary B. for life, and after her death, in
trust for such of her children as should then be living; and if any child should be dead, leaving issue, such issue to take the
share of the deceased parent.
On the 1st of October, 1847, Gustin Perry
executed a deed conveying the slave to Henry
W. Perry, for the use of the said Mary B. and her children, in pursuance of
the decree.

After the decree, and before the execution of the deed, one Harris recovered
judgment against Gustin Perry and
others, for $___ , and sued out execution, under which the slave was sold as the property of
Gustin Perry, and purchased by the
defendant, to whom he was conveyed by the officer, and possession taken accordingly. The defendant, at the time he purchased, had
express notice of the claim of Mary B. and her children, and of the decree which
had been made in their favour.
The prayer of the bill is, that the defendant may convey to the plaintiff, as trustee, according to the decree, and account for
the hires and profits.

The answer alleges that, at the Spring Term, 1846, of the Superior Court of Law for Caswell County, one
Richard Smith recovered a judgment
against Gustin Perry, Samuel Perry, S. Broddie, and N. Patterson,
upon which execution issued, tested of said term under which the slave was sold as the property of
Samuel Perry, and was purchased and
paid for by Gustin Perry, through
an agent, and was by him taken into possession, and kept until he was sold as the property of said
Gustin, and purchased by the defendant under the execution in favor of Harris
against Gustin Perry and others,
referred to in the bill.Samuel Perry, Broddie and Patterson,
were the sureties of Gustin Perry
in the debt upon which the judgment was taken by Smith in Caswell Superior Court.
The question is, what right, if any, did Gustin
Perry acquire by buying and paying for the slave under the execution against himself,
Samuel Perry and others, his
sureties?
Upon the reasoning in Morris v. Allen,
10 Ire. Rep. 203, Dobson v. Erwin, 1
Dev. and Bat. Rep. 569, it may be doubted whether Gustin
Perry, as against Samuel Perry,
acquired anything by his purchase, and whether it would not, even at law, be treated as a nullity, so as to leave the title in
Samuel Perry. The money of
Gustin Perry was applied to the
payment of his own debt, and in the language of the Court in Dobson v. Erwin,
" there was, in truth, no price and no sale; the sale which the creditor and sheriff thought they were making was a more fiction.
It is a perversion of the process of the law, forbidden alike by it and common honesty,—the making a sale under it to raise money
which the debtor already had, and which he applied to the satisfaction of that very debt."
But suppose the legal title did pass to
Gustin Perry by force of the sheriff's sale; without looking for authority,
upon the reason of the thing it is manifest, that in Equity, he will be treated as having acquired the title for
Samuel Perry. A principal debtor,
with money in his pocket, suffers the property of his surety to be sold under execution, and becomes himself the purchaser! Can
he, in conscience, set up any title to the property ? Can he, with the same money, pay off his debt and acquire the property of
his surety ? The question is too plain for argument.
A purchaser at execution sale acquires only the interest of the debtor, and takes the property subject to all the equities to
which it was liable in his hands; under the deed of Samuel
Perry, Mary B. Perry
succeeded to all of his rights; it follows that the defendant is bound to make title according to the decree against
Gustin Perry, and to account for
the hires and profits.

For the purpose of this decision, we have assumed that the judgment of Smith
against Gustin Perry and others, in
Caswell Superior Court, was also against Samuel
Perry; because, from the view we take of the case, it is not necessary to advert to the fact that the writ was returned non
est inventus, and a nol. pros, entered as to him; or to the fact that the judgment, as to him, was vacated at a subsequent
term.

It was insisted at the hearing, that Mary
B. Perry and her children, the cestuis que trust were necessary parties, and that the suit could not be carried on
in the name of the trustee alone, as it concerned the trust-fund. We incline to the opinion that the cestuis que trust
should be parties; but as they are mere formal parties, for the purpose of concluding them by the decree, and the account which
will be ordered, and as the amendment does not at all affect the merits, and does not make any other alteration in the proceedings
necessary, it is allowed to be made in this Court without costs, under the recent act.
Per Curiam. Decree for plaintiffs.

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THE STATE v. JERRY JOHNSON

Justices of the Peace have not exclusive jurisdiction of the offence of receiving stolen goods under live value of Five
dollars; but only jurisdiction concurrent, under certain circumstances, with that of the Superior Court.
[The State v. Jerry Johnson, ante, 581, cited and approved.]

Indictment for receiving stolen goods, tried before Watts, J., at Spring Term 1870 of Franklin Court.
The defendant was charged with having received ten pounds of bacon, of the value of six pence, knowing it to have been stolen:
Having been convicted, upon motion the judgment was arrested for want of jurisdiction.
The Solicitor for the State appealed.

Attorney-General, for the State.
Rogers & Batchelor, contra.

Dick, J. The question as to the extent of the jurisdiction of the Superior Courts and of Courts of Justices of the Peace in
criminal matters, was fully considered and determined in the case of State v. Jerry Johnson, ante, 581.
In certain offenses specified by statute, the party injured in person or property has an election to prosecute the offender in
either of said Courts. A Justice of the Peace has not exclusive jurisdiction of the offence of receiving stolen goods under the
value of five dollars. He may exercise such jurisdiction, and his action may be final, where the offense was committed in his
township, and the party injured files a complaint within six months after the commission of the alleged offense.
In this case the Superior Court had jurisdiction, and the motion in arrest of judgment, ought not to have been sustained by his
Honor.
There is error. Let this be certified, that the Court below may proceed to judgment.
Per Curiam. Error.

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THE STATE v. SAMUEL BURT and others.

Spring Term 1870

A nugget of gold separated from the vein by natural causes, savors of the realty, and, so, is not a subject of larceny. (Here,
the nugget was found upon a loose pile of rocks, and was taken and carried away at one continued act.)
Larceny, tried before Watts, J., at Spring Term 1870, of Franklin Court.
There was a special verdict, finding: that there was a verbal contract between Burt
and the owner of a gold mine, that the former might run a rocker in such mine, paying a certain rent; that the other defendants
were working with Burt; that one of these employees found a nugget of gold lying
upon the land of the owner of the mine, on the top of a rock pile, not a part of the proceeds of the rocker; and that, after
consultation with the other defendants, it was appropriated to their own use, and was never accounted for to the owner.
His Honor thereupon gave judgment for the defendants, and the Solicitor for the State appealed.

Attorney-General, for the appellant.
Rogers & Batchelor, contra.

Dick, J. Nuggets of gold are lumps of native metal, and are often found separated
from the original veins. When this separation is produced by natural causes, there is no severance from the realty, but such
nuggets will pass under a conveyance, like ores and minerals which are embedded in the earth. When ores and minerals are taken out
of mines with expense, skill and labor, to be converted into metals, or used for the purposes of trade and commerce, they become
personal property, and are under the protection of the criminal law.
In England, ores, even before they are taken from the mines, are protected by highly penal statutes: St. 7 and 8 Geo. IV, amended
by 24 and 25, Vict. Loose nuggets which are occasionally found in gullies and branches, and in woods and fields, are hardly
considered by the law as the subjects of determinate property, until they are discovered and appropriated, and then they become
personal goods, and are the subjects of larceny. In this respect they somewhat resemble treasure trove, waifs, &c, in the criminal
law of England.
It is an ancient rule of the common law, that things which savor of, or adhere to realty, are not the subject of larceny. In this
respect the common law was very defective, and did not afford sufficient protection to many valuable articles of personal property
which were constructively annexed to the realty. These defects have, in some degree, been remedied by a number of statutes in this
country and in England.
These beneficial changes were induced by the necessities of progressive civilization, which required many valuable species of
personal property to be annexed to realty, to be used for the purposes of trade and manufacture; and in the arts; and which needed
the constant protection of the criminal law.
In a case like ours, there is no necessity for the Court to depart from the ancient technical strictness of the common law, and
there is no need of any additional legislation upon such a subject. In public estimation it has never been regarded as larceny for
the fortunate finder of a nugget of gold, or a precious stone, to appropriate it to his own use, although found upon the land of
another person. Hundreds of instances of this kind have doubtless occurred, and yet no case can be found of a prosecution for
larceny on this account, either in the Courts of this country or of England. This fact sustains us in the opinion, that for cases
like the one before us, there is no necessity to depart from the ancient landmarks established by the fathers of our criminal
jurisprudence. The nugget was found upon a loose pile of rocks by one of the defendants, and the taking and carrying away was one
continued act, and did not amount to larceny, but was only a civil trespass: 1 Hale P. C. 510; 2 East. P. C. 587; Roscoe Crim. Ev.
459; 2 Russell on Cr. 136; 2 Bish. Cr. Law, s. 779.
There was no error in the ruling of his Honor, and the judgment must be affirmed.

Per Curiam. Judgment affirmed.

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ZEDEKIAH EDWARDS v. WM. J. BRANCH.
December Term 1859

An order, made by the wardens of the poor of a county, that a particular sum should be allowed and placed in the hands of A,
payable semi-annually for the benefit of a pauper, was Held repealable within the time of the first half year, although A had
proceeded under such order, to purchase provisions for the whole year, and, that he was only entitled to one half-yearly
installment.

This was a motion for a peremptory mandamus, tried before Shepherd, J., at the
last Fall Term of Franklin Superior Court.

A petition was filed in the Superior Court for an alternative mandamus, which accordingly issued, and the defendant having been
served therewith, made return to the same, and the cause coming on, upon the pleadings and proofs, it appeared that, on the 8th of
December, 1856, an application was made to "William Branch and others, wardens of the poor for Franklin county, for a provision
for one Lucy Adcock, a pauper, resident in said county, when the following order was made : " Dec. 8th, 1856, the case of Lucy
Adcock was considered, and the sum of $75.00 was allowed and placed in the hands of Zedekiah
Edwards, payable semi-annually, and
an order directed to issue for the same."

Afterwards, another order issued on the 9th of March, 1857, at-, follows: "
On motion, the case of Lucy Adcock was considered, and the order directed to issue in her favor, Dec. 8th, 1856, was rescinded."
Evidence was then offered, that on the 8th of Dec. 1856, the wardens agreed with Edwards, the petitioner, that lie should furnish
his sister, Lucy Adcock, with provisions, and they would pay the allowance to him of $75.00, one half in June, and accordingly he
made a purchase for her, and the wardens paid him for one half the year, but refused to pay after the order was rescinded, of
which notice was given to Edwards, but not until he had bought provisions for the year.
The petitioner further offered evidence that he had bought provisions for Lucy Adcock during the year, all at-one time, and lie
insisted that his undertaking was a contract which he had a right to enforce against the wardens of the poor, for the whole year,
1857, or until December. It was agreed that the Court might try all the questions, whether of law or fact, without submitting
issues to a jury, and the Court having heard and considered the whole case, refused the peremptory mandamus, being of opinion that
the allowance of $75.00 was a mere charity, which might be revoked at any time by the wardens, and gave Judgment for the
defendants; whereupon the petitioner prayed for and obtained an appeal to the Supreme Court.

SOLOMAN for PlaintiffDavis and W. F. Green, for
defendant

Manly, J. The administration of the fund provided by the public authorities for
the support of the poor, is committed, in North Carolina, to a court of wardens. By reference to the chapter of the Revised Code,
upon the subject, it will be perceived that the court is invested with a large discretion in the application of the fund. Thus,
the objects of the public bounty, the periods of enjoyment, the several amounts to be allotted, the manner of their
application--whether by means of public institutions, or directly to the needy in their respective homes, are all matters left to
the discretion of the wardens, and with the exercise of this discretion, no court has a right to interfere. The wardens are
authorized to appoint a secretary and treasurer; they are required to keep a record of proceedings and accounts of receipts and
disbursements, and to publish the same annually, and are technically subject to be deposed by the appointing power.
These are the only safe-guards the law has thought proper to provide for the effective and equitable distribution of the public
charity; and the courts are not allowed to interpose by way of mandamus in aid of these checks, and by dictation secure what may
be supposed a more equitable and efficient application. We think, therefore, the court of wardens, after the passage of the order
of the 8th of December, 1850, had a right to repeal it at any time without giving legal cause of complaint to the pauper; subject,
nevertheless, to the rights of third parties, with whom contracts may have been made under the order in question. The point, then,
upon which this petition turns, is whether there was any unfulfilled contract on the part of the wardens with the petitioner,
Edwards, in relation to the support of Lucy
Adcock. Under the order of December, 1856, it seems from the facts transmitted to the Court, that an agreement was made
between the wardens and the petitioner "that he should furnish his sister, Lucy Adcock,
with provision, and the wardens would pay the allowance of $75 to him, one half in June." The wardens paid $87.50 for the first
half year; but in the mean time, having repealed the order, they refused to pay for the other half year; and the question is
whether the words of the agreement constitute a contract between the wardens and the petitioner for the entire year's provision.
We think no such engagement is to be inferred from the words. It is in substance a promise, merely, to pay at the end of six
months $37.50 for provisions furnished to the woman in the mean time, and does not amount to a pledge of its continuance beyond
that term. It seems to have been the
purpose of the wardens to prevent a wasteful consumption of the means set apart for the woman's use, and hence they stipulate that
the provisions shall be paid for semi-annually, and by consequence, as we think, furnished in semiannual installments. The
purchase of the whole year's provision by Edwards, and furnishing them at once was
a misinterpretation of the engagement, and a misconception of the obligations and rights. The order of the court of wardens is for
a semi-annual allowance to Lucy Adcock of $37.50. This the wardens could repeal at
any time in the exercise of their discretion. But any contract made with petitioner
Edwards, for laying out and applying this amount, could not be set aside or repealed; but might be enforced by the writ of
mandamus. The extent of the contract between them, as we interpret it, is to make to
Edwards half yearly payments of $37.50 for provisions furnished for the sister. As there is no stipulation for its
continuance through any particular period of time, it is a contract which either might discontinue at his option, at the end of
the half year.
The contract thus interpreted, has been fulfilled by the wardens, and
therefore, the writ of mandamus is refused. It is a writ extensively and stringently remedial, and ought not to be resorted to in
light, trivial, or dubious cases. Motion for a peremptory mandamus overruled with costs against the petitioner.
Per Curiam, Judgment affirmed.

1. It is not necessary to have the appraisers' return of the allotment of the homestead registered in the office of the
Register of Deeds of the County in which the homestead is situated, (provided it is filed in the judgment roll of the action in
which the judgment was rendered) in older to make the judgment lien valid and binding on the homestead until the homestead estate
shall expire. The riling of the return in the judgment roll, in compliance with Section 504 of The Code, is constructive notice to
all who have dealings with the homesteader concerning the homestead.

2. The lien of a judgment on land in which a homestead has been duly
allotted does not cease upon the expiration of ten years from the date of the judgment but continues during the continuance of the
homestead estate, notwithstanding a sale and conveyance of the land by the homesteader. (clark,
J., dissents arguendo).

Civil Action tried before Robinson, .J., and a jury at January Term, 1897, of
Franklin Superior Court. The action, commenced on the 7th of January, 1896, was to subject to the payment of plaintiff's judgment
rendered and docketed in 1872, land which had been allotted to the judgment debtor as a homestead but which had been conveyed by
the judgment debtor thereafter and by mesne conveyances had been acquired by defendants.
It was admitted on the trial:
That Edgar Miller is the surviving partner of Samuel
Bevan and Company, and that R. A. Speed
died intestate in the same county of Franklin in 1885, and that the defendant O. L. Ellis
was duly appointed and qualified as his administrator, and is still such administrator.
That R. A. Speed, Jr., is the son of R. A.
Speed, Sr., and that the Perry defendants are the infant children of Win.
Perry deceased. And being without general or testamentary guardian, that B. B.
Massenburg has been appointed and appears in this action as their guardian ad
litem.That the Widow of R. A. Speed, Sr., w ho survives him, is seized and
possessed of a homestead in her own right, worth a great deal more than
$1,000.
That on the 3rd day of March, 1871, H. A. Speed executed his bond to the
plaintiff in the sum of $457, in which he covenanted not to claim any
homestead and personal property exemption
against the collection of said bond.
That the plaintiff brought suit on said bond and on account against said R.
A. Speed for $95.39, and obtained judgment against the said R. A.
Speed at
the September Term, 1872, of Franklin Superior Court for $552.54, with
interest on $457 from March 3rd, 1871, and on $185.39 from February 9th,
1872, until paid, and the costs of this action.
That on the 22nd day of June, 1873, the plaintiff procured execution to issue on said judgment, and the defendant R. A
Speed claimed his homestead exemption and the Sheriff summoned appraisers to allot
and set apart to him his homestead. The appraisers allotted to him as his homestead all the land he owned to-wit, 379 acres on
Sandy Creek, adjoining the lands of J. F. Jones, Kindred
Gupton and others. The Sheriff returned the report of the appraisers to the next
term of the Court, and the execution also, with the endorsement: "Nothing found in excess of the homestead exemption to satisfy
said judgment."
That upon the coming in of the report of the appraisers and the return of the execution, the plaintiff moved to set aside both as
to so much of the judgment as was recovered on the bond for $457, upon the ground that the defendant in the action having waived,
upon the face of the bond, his right to a homestead, was not entitled thereto. The Court overruled the motion, and the plaintiff
excepted and appealed to the Supreme Court. The Supreme Court approved the judgment of the lower Court. (See Volume 74 of the
Supreme Court Reports.)
That the said allotment of the homestead embraces the whole of the land mentioned in the complaint, but that while the same was
returned to the Clerk of the Court and filed with the papers in the case, yet the said return was not recorded in the registry of
Franklin County, as by the Statute provided, until the 22nd day of January, 1897-long after this suit was instituted, but before
the trial.
That on the 21st day of November, 1878, R. A. Speed and wife conveyed in fee, for a
money consideration, to J. J. Davis all their right, title and interest in and to
the land, described in the complaint as "a tract of land containing 309 acres," which said conveyance is recorded in the
Register's office of Franklin County, Book 79, at page 485. This deed was introduced in evidence.
That theretofore, as set out in said deed, R. A. Speed and wife
had mortgaged a part of said land to Thomas White, guardian, and had conveyed
the other part in fee to W. H. Davis, which said deeds were dated respectively,
March 22, 1877, and March 26, 1876, and were recorded in Book 45, at page 263, and in Book 45, at page 66, as set out in said deed
of R. A. Speed and wife to .J. J. Davis.
These deeds were introduced in evidence.

That thereafter said J. J. Davis paid off the debt to Thos.
White, guardian, and also acquired the title to said land conveyed in said deed to
W. H. Davis.
That on the 8th day of January, 1883, the said J. J. Davis conveyed 208 acres of
the said land to R. A. Speed, Jr., and that on the same day the said R. A.
Speed, Jr., executed to the said Davis
a mortgage deed, whereby he conveyed the said land to secure the purchase money for the same. The said deed and mortgage are
recorded in the said Register's office in Book 60, at page 526. The said deed and mortgage were introduced in evidence.
That thereafter the said J. J. Davis assigned and endorsed for value the said note
and mortgage, when past due, to the said Raleigh National Bank, as collateral to secure a note executed by him to said bank for
borrowed money, as appears from the record. That thereafter J. J. Davis conveyed
the balance of said land, to-wit, 108 acres, to J. F. Jones, who is now (and had
been for more than seven years before the beginning of this action) in the actual possession thereof.
That since the execution of the said deed to the said W. H. Davis, the said W. H.
Davis and those claiming under him, have been in continuous possession of the land
described in the said deed, and claiming it under said deed, until the execution of the said deed by R. A.
Speed and wife to J. J. Davis; and
that thereafter the said J. J. Davis, and those claiming under him, have been in
continuous possession of the two said tracts of land, to-wit, the one mortgaged to Thomas
White, guardian, and the one conveyed to W. H. Davis, claiming the same
under their said deed as their own and under known and visible boundaries. That since the execution of said deed from J. J.
Davis to R. A. Speed, Jr., the said
R. A. Speed, Jr., and those claiming under him, have been in continuous possession
of said tracts of land, claiming the same under said deed as their own, and under said known and visible boundaries.
The Court, upon the request of the defendants, instructed the jury, that inasmuch as the allotment of the homestead was not
registered in the office of the Register of Deeds of Franklin county until the 21st day of January, 1897; and that inasmuch as it
was admitted that the several defendants had entered upon the lands described in the complaint, under the deeds executed to them,
which were color of title, and had been in possession of said tracts of land under known and visible boundaries for seven years
before the beginning of this action, that they should answer the issue, "Yes."
The jury responded accordingly, and the plaintiff excepted. There was a motion for a new trial by the plaintiff. Motion overruled
and plaintiff excepted and appealed.

Montgomery, J.: At the Fall Term, 1872, of Franklin Superior Court, Samuel
Bevan, William A. Williams and Edgar
Miller, trailing under the firm name of Samuel
Bevan & Co., obtained a judgment against R. A.
Speed for money and costs, and under an execution issued on the judgment,
returnable to the Spring Term, 1873, of that Court, the Sheriff had, through appraisers, the homestead of the
defendant allotted to him. The allotment embraced the whole of the debtor's real estate and was returned by the Sheriff to the
Clerk of the Court soon after it was made, and it was filed by the Clerk at that time in the judgment roll in the case where it
has been ever since. The Clerk of the Court, however, did not send a certified copy of the homestead return to the Register of
Deeds, nor was the same registered until after the commencement of this action.
The defendant homesteader is dead, his widow owns a homestead in her own right, and the youngest child is more than twenty-one
years old, and Edgar Miller, as surviving partner of the original plaintiffs,
brought this action on the 7th day of January. 1896, to subject the homestead to the payment of the judgment of 1872 as a first
lien. The defendants claim title to the land, which was the homestead, under mesne conveyances and set up in their several
answers back to deeds from Speed and wife of dates 1876, 1877, 1878; and aver that
they bought without notice of the allotment of the homestead-the allotment not having been registered in the office of the
Register of Deeds.
Two questions are presented in the record for our decision. The first is whether it is necessary to have the appraisers' return of
the allotment of the homestead registered in the office of the Register of Deeds of the county in which the homestead is situated,
and also to have it tiled in the judgment roll of the action in which the judgment was had, in order to make the judgment lien
valid and binding on the homestead until the homestead estate shall expire; and the second is whether the lien of a judgment
procured in 1872, the homestead having been duly allotted, continues only during the ten years next after the rendition of the
judgment or whether it lasts during the continuance of the homestead estate.

We will now take up, in order, the discussion of the first question.

The Code, Section 504, which is Section 4 of Chapter 137 of the Laws of 1868-'9, requires that "The appraisers shall then
make and sign in the presence of the officer a return of their proceedings, setting forth the property exemption, which shall be
returned by the officer to the Clerk of the Court for the county in which the homestead is situated and filed with the judgment
roll in the action, and a minute of the same entered on the judgment docket, and a certified copy thereof under the hand of the
Clerk shall be registered in the office of the Register of Deeds for the county...." The defendants' counsel cited the case ofSmith v. Hunt, G8 N. C, 482, as
an authority for the indispensable necessity of the registration in the office of the Register of Deeds of the homestead allotment
and return. That case did not present that point. There, the homestead and personal property exemptions appeared to have been
allotted and appraised by petition before a Justice of the Peace, and the only point presented arose upon the complete failure of
the return to show a descriptive list of the personal property which was set apart as the personal property exemption of the
debtor. The return of the appraisement and allotment had been duly registered, but because of a lack of description of the
personal property in the allotment, the proceeding was in that case held void by this Court.

W. L. McGEHEE vs. A. S. TUCKER, Administrator of N. H. Murphy. (Decided April 12, 1898.)
Appeal-Premature Appeal-Hypothetical Propositions of Law-Practice.
1. This Court will not entertain premature or fragmentary appeals.
2. Where the pleadings in a cause raise an issue as to a fact necessary to be determined, and the parties, by agreement, reserve
the ascertainment thereof and submit a hypothetical proposition of law depending on such fact, an appeal will not lie
from the decision thereon.

Civil Action, heard before Boykin, J., at April Term, 1896, of Franklin Superior
Court. The purpose of the action and facts connected therewith are stated in the judgment of his Honor. When the case was called
for trial it was agreed by counsel for both parties at the hearing, that the issue raised in the pleadings, as to whether the
defendant's intestate died seized of any real estate, should be reserved; and that the Court, upon the pleadings and upon the
admission contained therein, should determine the question as to whether or not the plaintiff's judgment is barred by the Statute
of Limitations, and whether it constitutes a legal demand against the intestate's estate.
After hearing the pleadings read and the agreement of counsel, the Court was of opinion that the plaintiff's judgment was not
barred by the Statute of Limitations, and that it does constitute a legal demand against the intestate's estate in the order of
distribution as provided by statute, and so ruled.
The defendant excepted.
His Honor rendered judgment as follows:
"It appears to the Court that in the month of October, 1893, N. H. MURPHY died intestate in the county of Franklin, and that on
October 31st, A. S. TUCKER qualified as his administrator. That having procured from the Superior Court an order to sell the
personal property of the decedent for cash, the said defendant shortly after his qualification sold the said personal property,
deriving there from the sum of $387.87. That on the 27th day of June, 1885, the plaintiff obtained judgment against the
defendant's intestate for the sum of $196.46 with its interest from the 1st day of January, 1881, till paid, and for costs, $1.45.
That on August 10th, 1885, the plaintiff procured said judgment to be docketed in the Superior Court, in Book No. 2 at page 128.
That this action was instituted on January 11, 1895, to have said judgment so docketed declared alien on the assets in the hands
of the personal representative, and to ask the Court to direct the distribution of said assets according to the Statute of
Distributions after declaring the same to he a lien. It further appears that the personal representative has, out of the sum of
$387.87, so derived from the personal estate, paid out the sum of $186.56 for and on account of debts due by the estate of the
decedent, which (with the exception of the costs of administration, the taxes assessed against the decedent and the funeral
expenses), are of rank and dignity inferior to the plaintiff's judgment. It further appears that the defendant has filed his
answer in which he admits the facts and each of them found above, but insists in said answer that the plaintiff's judgment is
barred by the Statute of Limitations and forms no lien upon any part of the intestate's property and is not entitled to any
precedence over any debt due by the intestate and in itself is no valid
demand against said estate. And the plaintiff and defendant having agreed to submit the questions herein raised for the Court's
settlement and determination, it is now by the Court ordered, considered and adjudged: That the said judgment so taken and
docketed as aforesaid by the plaintiff against the defendant's intestate, is a lien upon the estate of the decedent in the
defendant's hands arising from the personal property having preference and priority over all claims and demands against said
estate, except the debts having specific lien (the taxes assessed against the said decedent, the funeral expenses and the other
judgments taken against said decedent of an older date than the one taken by the plaintiff). It is further the opinion of the
Court, and the Court doth so declare: That the said judgment is not barred by the Statute of Limitations.
"The Court is of the further opinion, and doth so declare: That the defendant, in paying the debts of lesser rank and dignity than
the plaintiff's judgment committed devastavit of the intestate's property and effects."
To this judgment the defendant excepted, and appealed therefrom.

Per Curiam: Whether the intestate of the defendant died seized of realty is an indispensable fact to be ascertained before the
application of the Statute of Limitations can be determined. The pleadings raise an issue as to that fact, but counsel by
agreement reserved the ascertainment thereof and speared a hypothetical proposition of law to the Court. The Court will not
entertain fragmentary or premature appeals. Clark's Code, Section 584, and cases cited. Hinton v. Ins. Co., 116 N. C, 22.
As was said by Pearson, C. J., in Hamlin v. Tucker, 72 N. C, 502, the Court
will not ''take two bites at a cherry."
Appeal dismissed.

---------------

EUGENIA A. FENNER et al v. HENRY N. JASPER
December 1834

Franklin County

Where it did not appear, either in the order for a commission to take the private examination of a. femme covert, under the act
of 1751 (Rev. ch. 50), or in the commission itself, that she was an inhabitant of another county, or so aged or infirm, as to be
unable to travel to Court, it was held, that the deed was inoperative to convey the wife's interest in the land. It seems, that it
must appear, that the commission and the certificate of the commissioners were returned to the Court, approved, and ordered to be
registered, or the deed will be invalid as to the wife's estate in the land.
This was an action on the case, in nature of an action of waste, commenced in the county of Franklin, but removed to the county of
Warren, where, on the last Circuit, it was submitted to his honour, Judge Donnell,
on the following case agreed. In the year 1827, the defendant intermarried with Sarah M.
Fenner, widow of Richard J. Fenner, and the plaintiffs are the children of
the said Sarah by the said Richard. The said Sarah had issue by the defendant born alive, and in the year 1829, departed this
life, leaving the plaintiffs, her only children and heirs at law, and the defendant, her husband, surviving. Before the death of
the said Sarah, the defendant and the said Sarah executed and delivered to one N. B.
Massenburg, a deed intended to convey, and expressed in apt and sufficient words, to convey in fee simple to the said
Massenburg, a tract of land in Franklin county, of which, at the time of the
marriage of the said Sarah with the defendant, she was seized in fee simple; and afterwards the said
Massenburg, by deed duly executed, conveyed all his estate in the said land to the
defendant and his heirs, which deed was sufficient to convey, and did convey the fee simple to the defendant, if the deed of the
defendant and the said Sarah was sufficiently proved and authenticated to operate in law upon her estate in the land. All the
proceedings had touching the probate of the said deed, and the examination of the said Sarah, as to her free consent in executing
the same, appear in the following entry on the minutes of the County Court of Franklin, at December term, 1828.
"The execution of a deed from Henry N. Jasper, and Sarah M. his wife, to Nicholas
B. Massenburg, was duly proven by the oath of James
Newbern, in open Court; whereupon on motion it is ordered by the Court, that C. A.
Hill and Thomas Crocker, esquires,
be appointed to take the private examination of the said Sarah M., as to the voluntary execution, on her part, of the said deed,
and that for that purpose, the clerk issue a commission to the said______ , esquires," and in the following endorsements on the
deed of the defendant and the said Sarah to the said Massenburg, on which James
Newbern appears the subscribing witness.
"Franklin county, December sessions, 1828. I certify that the execution of the within deed was duly proven in open Court, by the
oath of James Newbern, and was, on motion, ordered to be registered. Teste, S.
Patterson, C. C."
State of North Carolina
Franklin County

Court of Pleas and Quarter Sessions.
December Sessions, 1828

"To Charles A. Hill and Thomas Crocker,
esquires, greeting-Whereas Nicholas B. Massenburg hath produced a deed made to him
by Henry N. Jasper and Sarah M. Jasper,
his wife, of a certain tract of land lying in the county of Franklin aforesaid, and procured the due execution of the same to be
proved by the oath of James Newbern, in open Court: Know ye, that we, in confidence
of your prudence and fidelity, have appointed you to take the private examination of Sarah M. Jasper,
wife of the said Henry N. Jasper, concerning her free consent in her executing the
said deed of conveyance, and therefore we command you, that at such place as you may think fit, you, privily and apart from her
husband, examine her, the said Sarah M. Jasper, whether she executed the said deed
freely and of her own accord, without fear or compulsion of the said Henry N. Jasper,
her husband, and the examination so by you made, that you return on the deed aforesaid. Teste, S. Patterson, C.C.

"State of North Carolina, Franklin county.
"Pursuant to a commission to us directed by the worshipful County Court of Franklin County aforesaid, at December sessions, 1828,
we, Thomas Crocker and Charles A. Hill,
Justices of the Peace of the said county, proceeded to take the private examination of Mrs. Sarah M.
Jasper, wife of Henry N. Jasper, the
parties to the within deed, when she stated that she executed the within deed of her own free will, without any influence or
control of her husband, the aforesaid Henry N. Jasper. Given under our hands and
seals, this 10th day Decr. A. D. 1828.

Thos. Crocker. [ L. S. ]
C. A. Hill. [ L. S. ]"

After the death of the said Sarah, the defendant continued in possession of the land, claiming to hold the same as tenant in fee
simple, and hath cut down timber trees, and done other acts which do in law amount to waste in a tenant for any less estate; and
the plaintiffs claiming that he is only tenant by the curtesy, and that the fee simple and inheritance is in them by descent from
their mother, have brought this action to recover damages for the said waste.
Upon this case, his honour being of opinion, that the deed of Jasper and wife had
not been so proved and authenticated as to pass the wife's title, gave judgment for the plaintiffs, for a sum agreed as the amount
of damages, from which the defendant appealed.

Badger, for the defendant.
W. A. Haywood, contra.

It will be perceived that the validity of the order does not depend upon the truth of the representation made to the Court, as
appearing upon evidence afterwards; for of that the adjudication is conclusive. But the question is determined upon this; that the
commission can be issued only under particular circumstances, and that those circumstances, must be proved by the record and
commission themselves; or at least by one of them. This defect being fatal, it is unnecessary to look farther. But it may be
mentioned, that there are others which seem to be equally so. Among them are these; that it does not appear, that the commission,
or certificate of the commissioners, was ever returned to the County Court, much less, that the Court was satisfied therewith, and
ordered the proceedings to be registered.
The only order for a registration is that made on the probate by the subscribing witness; which extends to the deed as that of the
husband only.

Per Curiam. Judgment affirmed.

Ruffin, Chief Justice.-The act of 1751 (Rev. ch. 50,) gives two modes of taking the
acknowledgment of a married woman, of a deed executed by her husband and herself; the one in open Court of the county where the
lands lie, or before a Judge; and the other by two or more commissioners authorised by a commission issued by the clerk of the
County Court. The act does not treat these methods as equally proper and beneficial to the wife, and give to the parties an
election of the one or the other in every case; but it substitutes that by commission for an acknowledgment in Court, only when it
shall appear that such an acknowledgment cannot be made, because the wife cannot travel to Court by reason of age, infirmity, or a
residence in another county.
These provisions being for the protection of the wife, the principle of
construction laid down in Dean v. Wilson, 2 Dev. 306, and other cases, is to require a strict observance of every ceremony
prescribed in the statute, and in the order as there prescribed, as tending to render the intended protection the more effectual.
A literal construction is the true construction, according to the spirit of the act.
The deed in this case was acknowledged under a commission from the County Court; and neither the commission, nor the order of
record for issuing it, sets forth that Mrs. Jasper was either so infirm or aged,
that she could not travel to Court; while upon its face, the deed itself states the husband and wife to be inhabitants of Franklin
county, in which the lands are situate.
Upon the principle established, such an acknowledgment is defective, and the deed must be deemed invalid; unless the order of the
County Court for the commission precludes all inquiry into the propriety and grounds of that order. The acts of a Court of record
are always conclusive of the truth of the matters stated in them; and also generally, perhaps, of the existence of those facts,
without which the order or judgment could not be legally made. But this case cannot come within that rule. It would defeat the
purposes of the legislature, to be collected from the several parts of the act construed together, and as almost literally
expressed in some of the provisions. The authority to issue a commission is found in the third section, which comes in by way of
proviso to the second, and is a special authority, founded upon a particular state of facts. That state of facts may therefore
reasonably be required to appear affirmatively. But there are other reasons which imperatively determine, that it must thus
appear. The commission may be ordered as well by a Judge out of Court, as by the County Court; but it is in all cases to be issued
by the clerk of the County Court, and be returned to that Court. Now in the fourth section, the form of the Dec. 1834 commission
is set forth in his verbis; and in it is recited, as the cause for taking, the acknowledgment by commission, that it has
been represented to the Judge or Court that the wife was not an inhabitant of this state, or was so aged or infirm that she could
not travel to them. This recital in the act of the Clerk can be founded only on a similar one in the order; and therefore must be
authorised by such specific averments in the order. Whatever, therefore, may be the general rule, there cannot, under the act of
1751, be a presumption from the order, of any of these facts, where the order itself is silent as to their existence; because in
the other proceedings arising out of the order, those facts must be distinctly and affirmatively stated.
It will be perceived that the validity of the order does not depend upon the truth of the representation made to the Court, as
appearing upon evidence afterwards; for of that the adjudication is conclusive. But the question is determined upon this; that the
commission can be issued only under particular circumstances, and that those circumstances, must be proved by the record and
commission themselves; or at least by one of them.
This defect being fatal, it is unnecessary to look farther. But it may be mentioned, that there are others which seem to be
equally so. Among them are these; that it does not appear, that the commission, or certificate of the commissioners, was ever
returned to the County Court, much less, that the Court was satisfied therewith, and ordered the proceedings to be registered.
The only order for a registration is that made on the probate by the subscribing witness; which extends to the deed as that of the
husband only.

Per Curiam. Judgment affirmed.

--------------

MARY RICHARDS, Administratrix &c. vs GUILFORD D. SIMMS
December 1834

Where nothing is said or done inconsistent with that inference, if two persons put their names on paper for the accommodation
of a third, they are co-securities, and are liable without respect to the apparent legal liabilities arising from the order of
their names. Hence, where A. procured the endorsement of B. and afterwards of C, upon a note which he intended to get discounted
at bank, it was held, that B and C were to be taken as co-sureties, although by agreement between A. and B, B. was to have
part of the proceeds of the note discounted, for which he was to give A his own separate bond, and that agreement was not made
known to C at the time of his endorsement.
The case of Daniel v. McRae, 2 Hawks, 590, discussed, and followed.

This was an action of Assumpsit, tried at Franklin, on the last Circuit,
before his honour Judge Donnell, in which the plaintiff declared against the
defendant for contribution, as the co-security with her intestate, for one Thomas
Yarbrough. On the trial it appeared, that in 1826, Yarbrough was indebted to
the State Bank, in the sum of four hundred and eighty dollars, one Kearney and
Davis being his sureties, and that Major
Richards, the intestate of the plaintiff, was also indebted to the Bank in the sum of one hundred dollars secured by
Yarbrough. It was agreed by Yarbrough and
Richards, (as the bank would not renew notes for less than one hundred dollars) to
put in a note for a sum sufficient to cover both debts, that so much of the proceeds as should be necessary, should be applied to
the discharge of Richards's debt, and the balance to the renewal of
Yarbrough's note; that Richards should, upon future renewals, pay his
proportional share of the payments required by the bank, and should give Yarbrough
his own bond for the amount of his debt, discharged by the proceeds of the new note.
A note was accordingly prepared for five hundred and eighty dollars, and endorsed by
Richards, and the defendant at Yarbrough's request also endorsed it, no
communication being made to him, of the agreement between Richards and
Yarbrough, or of the application of the proceeds. The note was discounted and the
proceeds applied as agreed. Richards gave
Yarbrough his bond for the one hundred dollars applied to his benefit, and from time to time made payments towards the
renewals, which were endorsed as Richards credits on his bond.
Yarbrough, afterwards becoming insolvent,
Richards was sued, and the whole amount of the note collected out of him. In this action, the plaintiff claimed that her
intestate and the defendant, were, as to so much of the note as was applied to the renewal of
Yarbrough's original note, co-securities, and that she was entitled to receive for
contribution a moiety thereof.
Under the instructions of his honour, who ruled that this case fell within the principle of the case of Daniel v. McRae, 2
Hawks, 590, a verdict was rendered for the plaintiff and the defendant appealed.

W. H. Haywood, and Badger, for the
defendant.Saunders, contra.

Daniel, Judge. In the case of Daniel v. McRae, 2 Hawks, 590, it was decided,
that endorsers on accommodation paper for the benefit of a third person, where there is no special agreement between such
endorsers, and where neither is benefitted, are to be considered as co-securities. That was a case in equity, but if they be
co-securities, the Courts of law also can give redress. That case has been thought by some of the profession, to have been shaken
by the decisions in the subsequent cases of Smith v. Smith, 1 Dev. Eq. Cases, 173, and Gomez v. Lazarus, ibid. 205.
We do not, however, consider the principle established in Daniel v. McRae, at all impugned by the decisions in those cases.
In Smith v. Smith, Helme and E.
Smith executed a promissory note to B. Smith, and on the note being carried
to him by Helme, he endorsed it. The signatures of E.
Smith and B. Smith were both in fact
voluntary, and for the accommodation of Helme, who procured the note to be discounted at bank. The endorser admitted, that he
endorsed it at the request of Helme, and that he had no knowledge, that E.
Smith was a surety, but that he then believed that E.
Smith, had a joint interest with Helme,
in having the note discounted. Helme, at the time of the endorsement, told the
endorser, that E. Smith, was bound to indemnify him, if he,
Helme, failed.
This case is, therefore, plainly distinguishable from that of Daniel Richards v. McRae. In Gomez v. Lazarus, the
inference of a co-suretyship between Gomez and
Clarke, from the circumstance that they respectively accepted and endorsed for the
accommodation of Levy, was considered by the Court as repelled by the special terms of the bond and first mortgage to
Clarke. They were for his separate and particular indemnity, and not for the
security of the debts generally. This was thought to establish an understanding, that
Clarke and Gomez were to be responsible, according to their legal
liabilities from the order in which their names appeared; since Clarke's taking a
security against loss to himself alone as endorser, indicated that he could not be subjected to loss in any other character. The
inquiry is not now whether that construction was the proper one; but whether that decision, assuming it to be on the ground
mentioned, is at points with the previous case of Daniel v. McRae. That such was the construction, is quite plain from the
reasoning of Judge Henderson, and especially from that part of it, which limits the
operation of the general words in the second deed to Lazarus and
McRae, by the reference to the former mortgage to
Clarke. The liability of Clarke as
endorser, necessarily converted the
liability of Gomez as acceptor, into the prior one; and therefore it was
held to amount to a declaration, that those persons should not be co-securities. Whether this was | right or wrong, it left
Daniel v. McRae, unaffected in its principle; which is, that where nothing is said or done
inconsistent with that inference, if two persons put their names on paper for the accommodation of a third person, they are
co-securities, and are liable without respect to the apparent legal liabilities, arising from the order of their names. That the
integrity of the case of Daniel v. McRae, was not intended to be impeached, is clear from the subsequent observations of
the same Judges, who pronounced the opinion in that case. In Hatcher v. McMorine, 3 Dev. 228, Judge
Henderson says, he is very far from being satisfied that the case of Daniel v.
McRae is wrong.
Accommodation paper, was almost unknown in this state, previous to the establishment of our banks. Since that period, most of the
business done in the banks, has been transacted upon paper of that description. And the principle laid down in the case of
Daniel v. McRae, has been so generally understood in this state to be the law, governing in the case of endorsements and
sureties on accommodation paper, that this Court feels itself now, under an imperative obligation to follow it as the established
law. But, we unanimously take this occasion to remark, that were it res integra, we could not sanction the principle. We
should say, as has been said by the rest of the mercantile world, that the parties to accommodation paper, were to be governed by
the same rules, as parties are governed, whose names are on other or business paper.

Fentum v. Pocock, 5 Taunt. 192. Murry v. Judah, 6 Cowen, 484. 3 Kent's Com. 86. The counsel for the defendant
contends, that if Daniel v. McRae be law, this case is not within its principle; that
Richards must be considered a principal, and not a surety. We do not think so. The
money which Richards received, must be taken as a loan from
Yarbrough, for which Richards gave
his separate note to secure the repayment. The note for five hundred and
eighty dollars, which Yarbrough drew, and which was endorsed, first by
Richards, and then taken by Yarbrough
to the defendant for his endorsement, was evidence to the defendant, that it was only for the accommodation of the drawer; and
that they, Richards, and the defendant, were to be considered only as endorsers
without any benefit in the avails of the said note, after it should be discounted at Bank. We think the Court was right, in
deciding that this case was governed by Daniel v. McRae, and therefore, that the plaintiff was entitled to recover.

Per Curiam. Judgment affirmed.

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